Opinion of the court by
Gillette J.:
This case was tried and determined upon the theory that the transaction resulting in the shipment of the goods was a transaction resting upon a written agreement, and could not therefore be varied by parol evidence. The determination of this question determines all necessary questions’ presented by the record.
The order for the goods was not a contract binding upon the parties until accepted by the Timken Carriage Co. It was a proposal only, which required acceptance, according-to its terms and tenor, before it assumed the dignity of a written obligation. There is no contract, in fact, until the-minds of the contracting parties have met and consented to the terms proposed. The agreement must be mutual, and communicated each to the other; and consent is not mutual! unless the parties all agree upon the same thing in the same* sense.
[430]*430The Timken Carriage Co. say in their petition that the order for the goods was duly accepted, “and that thereafter said contract of sale of said articles became complete, a'nd -that in compliance therewith the plaintiff delivered to Humphrey the goods mentioned in said order according to the terms thereof.”
How this acceptance was communicated to Mr. Humphrey was not shown — whether by letter or verbal notice is left to conjecture — but the petition does say the goods were delivered to Humphrey, according to the terms of the order.
The defendant answered first by a general denial, and •such answer put in issue the question of acceptance as pleaded, and the question of the delivery of the goods.
The evidence upon the trial did not show either written •or verbal acceptance of the order by the Timken Carriage Co., which was communicated to Mr. Humphrey, but does show that the Timken Carriage Co. did not accept it until one B. F. Berkey had been written to and requested to become responsible for the order, and when notified by Mr. Berkey that he would become so’ responsible, the goods were shipped by bill of-lading addressed to Mr. Humphrey, but mailed to Mr. Berkey, who took the same and procured the goods, from the A. T. & S. F. R. R. at Guthrie, placed them in his own place of business and sold them to his customers.
Mr. Timken, of the Timken Carriage Co. testified that the goods were billed to Mr. Humphrey April 18, 1898, but this declaration probably refers to the language of the bill of lading, for the evidence is conclusive that it was mailed to B. F. Berkey.
[431]*431The pleadings and tbe evidence show a disputed question •of fact, wbicb raises tbe question as to whether or not a consummated contract was ever entered into by and upon wbicb • defendant A. A.- Humphrey became liable to the Timken Carriage company.
Mr. Humphrey did not receive benefit from the transaction; his liability, if any is found, rests upon the contract, sued on, the validity of which is in contest.
The jury was instructed that there was no'controverted question of fact in the ease, and that the plaintiff was entitled "to recover.
This, we think was material error, which necessitates a reversal of the judgment.
In the trial of the case, the defendant offered evidence to show that the order for the goods, which is made the basis of plaintiff’s action, was given at the solicitation of the plaintiff’s agent, Slusser, who represented that he had sold a car load of goods to B. F,. Berkey, but that Berkey was involved financially and it was feared that a shipment to Ber-key would involve the Timken Carriage Co. with other creditors; that if he, Humphrey, would sign the order for the goods, he would not be held liable for them; that it would be used only for the' specific purpose of enabling the .Timken Carriage Co. to sell and ship goods to Berkey without danger of having them attached by other creditors, and that the order was signed for this and for no other purpose.
This tender of testimony and all evidence of like purport, was by the court rejected, because in conflict-with the -contract. •
[432]*432Admitting that the order so signed was a contract in writing, was it not competent to prove that it was not intended as such, and was in fact executed and delivered for-an entirely different and specific purpose?
Under the law, as generally accepted and enforced in this country, parol evidence is not competent to change or-vary a written agreement; but when does a writing become-an agreement? Certainly not until it is assented to in the sense that its tenor purports. As between the parties, a written instrument which is understood to have a particular import and meaning cannot by one of the parties thereto^ without the knowledge or consent of the other, be so diverted from the purpose of its execution as to fix other and new liabilities not contemplated when made. Such a construction of’ the law wholly destroys the definition which time-honored' customs and rules have given to contracts, to-wit, that two-minds must meet and consent.
The courts in the enforcement of contracts, have looked to the intent of the parties in the execution and delivery of them, and in many instances where the plain letter of' the contract fixes a liability contended for by one of the parties, have admitted parol proof to show that in the execution and acceptance of it something else was intended. (Hurlburt v. Dusenbery et al. 57 Pac. 860; Brick v. Brick, 98 U. S. 517; Ware v. Allen, 128 U. S. 590; Burk v. Dulaney, 153 U. S. 228; Bradley v. Washington, Alexandria and Georgetown Steam Packet Co., 13 Peters, 89; U. S. Fidelity & Guaranty Co. v. Siegmann, Supreme Court Minn. Aug. 1, 1902.)
In Hurlburt v. Dusenbery et al. 57 Pac. 860, the court, [433]*433quoting from the opinion of Mr. Justice Miller in Orierson v. Mason, 60 N. Y. 394, said:
“The object of the testimony was to show that the instrument was executed for a specific purpose, and, that purpose being accomplished, was of no effect in changing the contract previously made with the defendant. I think that it was competent evidence for this purpose. The defendant made out a contract. The plaintiff proved an instrument which altered the contract, and the defendant had a right to prove that the instrument introduced was not intended as an alteration of the contract but with a view of accomplishing a particular purpose. Such evidence was not given to change the written contract by parol, but to establish that such contract had no force, efficacy, or effect; that it was not intended to be a contract, but merely a writing to be used in inducing Woods to make advancements upon the goods. This is in avoidance of the instrument, and not to change it; and I do not see why the testimony was not as competent in this case as it would be to show that a written instrument was obtained fraudulently, by duress, or in any improper manner. Such evidence does not come within the ordinary rule of introducing parol evidence to contradict written testimony, but tends to explain the circumstances under which such instrument was executed and delivered.”
The court also quotes approvingly from the language of Earl, J., in Pym v. Campbell,
Free access — add to your briefcase to read the full text and ask questions with AI
Opinion of the court by
Gillette J.:
This case was tried and determined upon the theory that the transaction resulting in the shipment of the goods was a transaction resting upon a written agreement, and could not therefore be varied by parol evidence. The determination of this question determines all necessary questions’ presented by the record.
The order for the goods was not a contract binding upon the parties until accepted by the Timken Carriage Co. It was a proposal only, which required acceptance, according-to its terms and tenor, before it assumed the dignity of a written obligation. There is no contract, in fact, until the-minds of the contracting parties have met and consented to the terms proposed. The agreement must be mutual, and communicated each to the other; and consent is not mutual! unless the parties all agree upon the same thing in the same* sense.
[430]*430The Timken Carriage Co. say in their petition that the order for the goods was duly accepted, “and that thereafter said contract of sale of said articles became complete, a'nd -that in compliance therewith the plaintiff delivered to Humphrey the goods mentioned in said order according to the terms thereof.”
How this acceptance was communicated to Mr. Humphrey was not shown — whether by letter or verbal notice is left to conjecture — but the petition does say the goods were delivered to Humphrey, according to the terms of the order.
The defendant answered first by a general denial, and •such answer put in issue the question of acceptance as pleaded, and the question of the delivery of the goods.
The evidence upon the trial did not show either written •or verbal acceptance of the order by the Timken Carriage Co., which was communicated to Mr. Humphrey, but does show that the Timken Carriage Co. did not accept it until one B. F. Berkey had been written to and requested to become responsible for the order, and when notified by Mr. Berkey that he would become so’ responsible, the goods were shipped by bill of-lading addressed to Mr. Humphrey, but mailed to Mr. Berkey, who took the same and procured the goods, from the A. T. & S. F. R. R. at Guthrie, placed them in his own place of business and sold them to his customers.
Mr. Timken, of the Timken Carriage Co. testified that the goods were billed to Mr. Humphrey April 18, 1898, but this declaration probably refers to the language of the bill of lading, for the evidence is conclusive that it was mailed to B. F. Berkey.
[431]*431The pleadings and tbe evidence show a disputed question •of fact, wbicb raises tbe question as to whether or not a consummated contract was ever entered into by and upon wbicb • defendant A. A.- Humphrey became liable to the Timken Carriage company.
Mr. Humphrey did not receive benefit from the transaction; his liability, if any is found, rests upon the contract, sued on, the validity of which is in contest.
The jury was instructed that there was no'controverted question of fact in the ease, and that the plaintiff was entitled "to recover.
This, we think was material error, which necessitates a reversal of the judgment.
In the trial of the case, the defendant offered evidence to show that the order for the goods, which is made the basis of plaintiff’s action, was given at the solicitation of the plaintiff’s agent, Slusser, who represented that he had sold a car load of goods to B. F,. Berkey, but that Berkey was involved financially and it was feared that a shipment to Ber-key would involve the Timken Carriage Co. with other creditors; that if he, Humphrey, would sign the order for the goods, he would not be held liable for them; that it would be used only for the' specific purpose of enabling the .Timken Carriage Co. to sell and ship goods to Berkey without danger of having them attached by other creditors, and that the order was signed for this and for no other purpose.
This tender of testimony and all evidence of like purport, was by the court rejected, because in conflict-with the -contract. •
[432]*432Admitting that the order so signed was a contract in writing, was it not competent to prove that it was not intended as such, and was in fact executed and delivered for-an entirely different and specific purpose?
Under the law, as generally accepted and enforced in this country, parol evidence is not competent to change or-vary a written agreement; but when does a writing become-an agreement? Certainly not until it is assented to in the sense that its tenor purports. As between the parties, a written instrument which is understood to have a particular import and meaning cannot by one of the parties thereto^ without the knowledge or consent of the other, be so diverted from the purpose of its execution as to fix other and new liabilities not contemplated when made. Such a construction of’ the law wholly destroys the definition which time-honored' customs and rules have given to contracts, to-wit, that two-minds must meet and consent.
The courts in the enforcement of contracts, have looked to the intent of the parties in the execution and delivery of them, and in many instances where the plain letter of' the contract fixes a liability contended for by one of the parties, have admitted parol proof to show that in the execution and acceptance of it something else was intended. (Hurlburt v. Dusenbery et al. 57 Pac. 860; Brick v. Brick, 98 U. S. 517; Ware v. Allen, 128 U. S. 590; Burk v. Dulaney, 153 U. S. 228; Bradley v. Washington, Alexandria and Georgetown Steam Packet Co., 13 Peters, 89; U. S. Fidelity & Guaranty Co. v. Siegmann, Supreme Court Minn. Aug. 1, 1902.)
In Hurlburt v. Dusenbery et al. 57 Pac. 860, the court, [433]*433quoting from the opinion of Mr. Justice Miller in Orierson v. Mason, 60 N. Y. 394, said:
“The object of the testimony was to show that the instrument was executed for a specific purpose, and, that purpose being accomplished, was of no effect in changing the contract previously made with the defendant. I think that it was competent evidence for this purpose. The defendant made out a contract. The plaintiff proved an instrument which altered the contract, and the defendant had a right to prove that the instrument introduced was not intended as an alteration of the contract but with a view of accomplishing a particular purpose. Such evidence was not given to change the written contract by parol, but to establish that such contract had no force, efficacy, or effect; that it was not intended to be a contract, but merely a writing to be used in inducing Woods to make advancements upon the goods. This is in avoidance of the instrument, and not to change it; and I do not see why the testimony was not as competent in this case as it would be to show that a written instrument was obtained fraudulently, by duress, or in any improper manner. Such evidence does not come within the ordinary rule of introducing parol evidence to contradict written testimony, but tends to explain the circumstances under which such instrument was executed and delivered.”
The court also quotes approvingly from the language of Earl, J., in Pym v. Campbell, 6 El & Bl. 370, as follows:
"The production of a paper purporting to be an agreement by a party, with his signature attached, affords a strong presumption that it is his written agreement; and if, in fact,, he did sign the paper, animo contrahendi, the terms- contained in it are conclusive, and cannot be varied by parol evidence. * * * But if it be proved that in fact the paper was signed with the express intention that it should not be [434]*434an agreement, the other party cannot fix it as an agreement upon those so signing it.”
From these authorities it would seem clear that Humphrey had a right to show that the order was not given as a purchase, or proposal for a purchase, but for the purpose stated. It is true that it was given to an agent and contained a provision that it was subject to the approval of ITimken Carriage Co., but such agent in an agreement as to what the order was for, spoke for the Timken Carriage Co. .and what he did agree to was binding upon his principal; to .admit otherwise would be to sanction a fraud in the interest •of the principal, because the principal perpretrated it through an agent.
But we think the conclusions here reached need not rest alone upon the declaration of Mr. Humphrey as to what was understood and agreed to as between Mr. Humphrey and Slusser, agent for the Timken Carriage Co., for we think that the evidence introduced by the plaintiff, sufficient to justify a submission of it to the jury, for the purpose of determining the question as to whether or not the Timken Carriage Co. at the time accepted the order as Humphrey’s contract or proposal to purchase. The order was given March 22nd and received by them in St. Louis, March 24th, and on that day they wrote Mr. B. F. Berkey concerning the order as follows:
“St. Louis-, Mo., Mar. 24 ’98.
“B. F. Berkey, Esq., Guthrie, Okla.
“Dear Sir: We are in receipt of your order given Mr. 'Slusser and signed by Mr. Humphrey. Mr. Slusser writes that you prefer it this way and it is agreeable to us, providing that' you ¡simply write us a letter that you are responsi[435]*435ble for the account with Mr. Humphrey. We will make shipment to Mr. H. and also bill it to him.
“Mr. Slusser advises that if we can get in more work to put in Klondykes, crating all leather quarter tops low. On account of the arched axle work, will not be able to ship this car as promptly as otherwise. We, like all other carriage houses, have all and more than we can do, and we are liable to disappoint you a little on time on this order. Business was never as good as at present, that is as far as volume is concerned, and for that reason each'buyer wants his goods promptly, which means that a factory must have a little more time in the rush of the season on the individual orders.
“We will promise to do our best for you and feel sure that you will find this car of work an improvement over the two previous ears.
“Thanking you for same and trusting to hear from you promptly, beg to remain,
“Yours truly,
“TlMKEN CARRIAGE Co.”
In the light of this case, this language admits of the construction contended for by the defendant, that the order given Slusser was the order of Berkey and so understood by Timken Carriage Co. That it was not received as the order of Humphrey at the time, but was received under the terms and conditions set up in defendant’s answer; proof in support of which was tendered and rejected by the court.
For the reasons herein stated the judgment of the district court is reversed, and the cause is hereby remanded to the district court of Logan county, with instructions to vacate the [436]*436judgment rendered therein, and grant a new trial upon the motion therefor.
Burford, C. J., who presided in the court below, not sitting; Burwell, J., dissenting; all the other Justices concurring.